Citation Nr: 1643427 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 11-15 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a chronic lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active service from May 1978 to May 1982. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in July 2014. This matter was originally on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a chronic lumbar spine disability. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. As noted above, in July 2014, the Board remanded the case for additional development which included scheduling the Veteran for an additional VA examination to determine the etiology his current degenerative arthritis of the lumbar spine. The Board specifically directed that the examiner address whether it was at least as likely as that any diagnosed lumbar spine condition (i) had onset in service or within one year of separation; and (ii) was related to military service including an August 1979 trauma. The Board directed that the report must reflect consideration of both the medical evidence and lay evidence and noted the February 1982 and August 1979 service treatment records as well as the Veteran's statement. In this case, although the Veteran underwent VA examination in September 2014, because the examination report does not reflect consideration of the February 1982 service treatment record, further development is needed in light of this Stegall violation. Accordingly, the case is REMANDED for the following action: 1. The case should be referred to a physician with an expertise in spine disorders for an addendum opinion regarding the etiology of the Veteran's low back disorder, including any arthritis. The physician is specifically to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. The Veteran should be provided an additional VA examination if it is determined that one is needed. The examiner should identify all current chronic lumbar spine disorders and for each disorder, the physician is requested to respond to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that such lumbar spine disorder had its onset in service or is there evidence of arthritis within one year of separation? (b) Is it at least as likely as not (a 50% or higher degree of probability) that such lumbar spine disorder is causally related to service, to include as a result of the reported August 1979 trauma? The provided examination report must reflect consideration of both the medical and lay evidence of record - specifically the Veteran's statements as well as the August 1979 and February 1982 service treatment records and set forth a complete rationale for all findings and conclusions. 2. After the development requested has been completed, the addendum report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, corrective procedures should be implemented at once. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).